Supreme Court of Canada
Jackson et al. v. Bast et al. and Missiaen, [1967]
S.C.R. 166
Date: 1967-01-24
Robert Jackson and
Walter Kern (Defendants) Appellants;
and
Albert Missiaen and
Mary Missiaen (Plaintiffs) Respondents.
Robert Jackson and
Walter Kern (Defendants) Appellants;
and
Helen Bast, an
infant by her next friend, Anthony Bast and Anthony Bast (Plaintiffs)
Respondents.
and
Albert Missiaen (Defendant)
Respondent.
1966: December 7; 1967: January 24.
Present: Cartwright, Fauteux, Martland,
Ritchie and Spence JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA,
APPELLATE DIVISION
Damages—Collision of motor vehicles—Personal
injuries—Assessment of general damages increased by Supreme Court of
Canada—Applicable principles.
On appeal to this Court from judgments
rendered by the Supreme Court of Alberta, Appellate Division, in two actions
arising out of a motor vehicle collision, the Court, at the conclusion of
argument on the question of liability, retired and on returning gave judgment
as follows:
In this Court it is not questioned that the
collision out of which this appeal arises was caused in part by the gross
negligence of the driver of the appellants’ car.
The question whether or not the respondent
Albert Missiaen was guilty of contributory negligence is one of fact and we
find ourselves unable to say that we should interfere with the concurrent
findings in the Courts below absolving him from blame. The appeals will
therefore be dismissed with costs.
In the first action, a cross-appeal by the
respondent Albert Missiaen (referred to hereunder as AM) as to the amount of
general damages awarded to him was then fully argued and judgment was reserved.
Held: The
appeals should be dismissed; in the first action the cross-appeal should be
allowed and the judgment at trial varied by substituting for the sum of $12,000
general damages awarded to the respondent AM the sum of $22,000.
[Page 167]
The sum of $12,000 at which the trial judge
assessed the general damages of AM included (i) loss of salary from one year
after the accident to the date of trial, (ii) his prospective loss of salary,
(iii) the prospective payments to a housekeeper plus the cost of feeding her,
(iv) damages for pain and suffering, (v) damages for loss of the amenities of
life. Assuming that the life expectancy of AM at the date of the trial was only
three years, the shortest period suggested in the “guess” of a medical witness,
the total of items (i), (ii) and (iii) exceeded by more than $3,000 the total
award of general damages and nothing remained to compensate him in regard to
items (iv) and (v), that is to say for the fact that from a healthy and active
old age the accident had turned him into an invalid, practically never free
from pain.
In these circumstances, the amount at which
the general damages were assessed was so inordinately low as to be a wholly
erroneous estimate. The proper amount was not susceptible of precise
calculation. It was the duty of the Court to endeavour to deal with the matter
as would a properly instructed jury acting reasonably, not attempting to award
“a perfect compensation” but seeking to fix an amount reasonably proportionate
to the gravity of the injuries suffered. The Court was of the opinion that the
general damages should be increased by $10,000.
APPEALS and CROSS-APPEAL from judgments of
the Supreme Court of Alberta, Appellate Division, dismissing appeals and a
cross-appeal from judgments of Farthing J. in two actions brought as a result
of a motor vehicle accident. Appeals dismissed; cross-appeal in the first action
allowed.
W.B. Williston, Q.C., and R.B. Tuer, for
the appellants.
Arnold F. Moir, Q.C., and John A. Weir,
for the respondents, A. Missiaen and M. Missiaen.
Adrian G. Smith, for the respondents, H.
Bast and A. Bast.
The judgment of the Court was delivered by
CARTWRIGHT J.:—On June 1, 1963 at about 10 p.m.,
an automobile owned by the appellant Kern, driven with his consent by the
appellant Jackson and in which Helen Bast was a passenger was in collision with
an automobile owned and driven by the respondent Albert Missiaen in which the
respondent Mary Missiaen was a passenger. Albert Missiaen, Mary Missiaen and
Helen Bast all suffered personal injuries.
As a result of the collision two actions were
brought, the first by the Missiaens against Jackson and Kern and the second by
Helen and Anthony Bast against Jackson, Kern and Albert Missiaen.
[Page 168]
These two actions were tried together by
Farthing J. who found that the collision was caused by the gross negligence of
Jackson, absolved Albert Missiaen from blame and awarded damages against
Jackson and Kern jointly and severally as follows:
|
To Albert and Mary Missiaen, special damages.....................................
|
$ 8,624.49
|
|
To Albert Missiaen, general damages......................................................
|
$12,000.00
|
|
To Mary Missiaen, general damages.......................................................
|
$ 5,000.00
|
|
To Helen Bast and Anthony Bast, special
damages...............................
|
$ 1,605.80
|
|
To Helen Bast, general damages..............................................................
|
$10,000.00
|
The second action as against Missiaen was
dismissed with costs but it was ordered that the plaintiffs should recover from
Jackson and Kern the costs which they were required to pay to Missiaen.
In each action Jackson and Kern appealed as to
the findings in regard to liability and as to the quantum of general damages.
In the first action Albert Missiaen
cross-appealed asking that the amount of the general damages awarded to him
should be increased. The Appellate Division of the Supreme Court of Alberta
dismissed the appeals and the cross-appeal with costs.
In the first action, Jackson and Kern appeal to
this court and Albert Missiaen cross-appeals asking that the award of general
damages to him be increased.
In the second action, Jackson and Kern appeal;
there is no cross-appeal, Helen Bast and Anthony Bast ask that the judgment of
the Appellate Division be affirmed.
At the commencement of the hearing in this Court
we requested counsel to deal first with the question of liability. Counsel for
the appellants did not argue that the concurrent findings of gross negligence
against Jackson should be disturbed but submitted that the greater part of the
blame should be placed upon Albert Missiaen. At the conclusion of the arguments
of all counsel on this branch of the matter the Court retired and on returning
gave judgment as follows:
In this Court it is not questioned that the
collision out of which this appeal arises was caused in part by the gross
negligence of the driver of the appellants’ car.
[Page 169]
The question whether or not the respondent
Albert Missiaen was guilty of contributory negligence is one of fact and we
find ourselves unable to say that we should interfere with the concurrent
findings in the Courts below absolving him from blame. The appeals will
therefore be dismissed with costs.
The cross-appeal of Albert Missiaen as to the
amount of general damages awarded to him was then fully argued and judgment was
reserved.
The findings of the learned trial judge as to
the physical results of the injuries suffered by Albert Missiaen are am ply
supported by the evidence and are as follows:
At the time of the accident on 1st June,
1963 he was 82 years of age and in remarkably good health. He was working every
day. He did his own gardening and that of three of his sons, and looked after
their cottages at Pigeon Lake. A few months before the accident he had no
trouble passing a medical exam for his driver’s licence. His most serious
injuries are those affecting his legs. Before the accident he said he could
walk “miles and miles”. Now his left leg is tired and the right hurts in the
hip where it was dislocated. He can only walk with two sticks and only about
100 feet at a time. He can’t tie his shoe laces. He always has to sleep with a
cushion under his left knee. Pain in his leg makes sleep difficult. He gets
pain in his neck if he lies on his right side. He still enjoys his meals. He
can’t go out in the winter now but still enjoys getting out in good summer
weather.
Dr. F.G. Day, an orthopaedic surgeon,
said that Mr. Missiaen was very severely injured, the main injury being to
the hip joint and clavicle. In hospital he developed chest trouble from having
to stay so long in bed. His right hip is his principal trouble at present. It
is almost fixed in one position because there is no fusion. If there were, he
would be much better off. The only remedy would be to remove the head of the
femur and replace it with an artificial one. The doctor said he would not
recommend such major surgery for a man of his age as he would hardly have the
necessary “drive” to put him through the post‑operative period.
Dr. Day said that Mr. Missiaen suffered a great deal of pain, so much
so that he cannot walk or sit or lie in bed without suffering. The doctor fixed
his disability at 50 percent of total, which is just about double the degree he
had ever before estimated. He said he was surprised to hear that
Mr. Missiaen had said in evidence that he could walk about a hundred feet
at one time—a longer distance than the doctor would have thought possible.
From his own evidence and that of
Dr. Day, it was made quite clear that this unfortunate old man is anything
but a malingerer. From a remarkably healthy and active old age this accident
has turned him into an invalid who is practically never free from pain—even his
sleep being frequently interrupted thereby.
The learned trial judge also found that prior to
the accident Mr. Missiaen, who had farmed for the greater part of his
life, had always been an extremely active man, that after he retired he kept
himself busy at work not too heavy for him, that he kept the grounds in front
of his sons’
[Page 170]
company office in proper shape, that he did a
lot of work at the summer cottage of one of his sons, 54 miles away, driving
himself out there in the morning and back to Edmonton in the evening, that he
was employed as the caretaker of the sons’ business premises at a salary of
$210 a month although possibly during the two or three years prior to the
accident this may have been an over-payment made because of the family
relationship. For one year following the accident, the sons’ company continued
to pay the monthly salary but since then Mr. Missiaen has not received any
salary. Because of the physical condition of himself and his wife resulting
from the accident, he has to employ a housekeeper at a salary of $150 a month
to care for the two of them.
At the trial the witness, F.G. Missiaen,
produced a list of items of special damage and supporting vouchers totalling
$8,624.49. This was not seriously challenged in cross‑examination and
neither the list nor the vouchers were made an exhibit. However from an
examination of the evidence of this witness and the comments of counsel it
would seem that this total (which was the amount at which the learned trial
judge assessed the special damages) does not include any loss of salary or any
expense for feeding the housekeeper but does include the amounts paid to the
housekeeper up to the date of the trial.
From this it follows that the sum of $12,000 at
which the learned trial judge assessed the general damages of Mr. Missiaen
includes (i) loss of salary from one year after the accident to the date of
trial, (ii) his prospective loss of salary, (iii) the prospective payments to
the housekeeper plus the cost of feeding her, (iv) damages for pain and
suffering, (v) damages for loss of the amenities of life.
Item (i) would be in round figures $2,520.
Items (ii) and (iii) together, even excluding
any allowance for the food and lodging of the housekeeper, would amount to
approximately $4,300 a year.
At the time of the trial, in June 1965,
Dr. Day was asked in cross-examination as to Mr. Missiaen’s life
expectancy; he replied that while he would “only like it recorded as a guess”,
he thought “it would not be much longer than three or four years”; later in his
evidence while emphasizing that
[Page 171]
it was a guess rather than an estimate, he
suggested the possibility of the period being ten years.
If one assumes that Mr. Missiaen’s life
expectancy at the date of the trial was only three years, the shortest period
suggested in Dr. Day’s “guess”, it is at once obvious that the total of
items (i), (ii) and (iii) exceeds by more than $3,000 the total award of
general damages and that less than nothing remains to compensate him in regard
to items (iv) and (v), that is to say for the fact that, to quote again the
words of the learned trial judge:
From a remarkably healthy and active old
age this accident has turned him into an invalid who is practically never free
from pain—even his sleep being frequently interrupted thereby.
In these circumstances, it appears to me that
the amount at which the general damages were assessed is so inordinately low as
to be a wholly erroneous estimate. The proper amount is not susceptible of
precise calculation. It is, I think, our duty to endeavour to deal with the
matter as would a properly instructed jury acting reasonably, not attempting to
award “a perfect compensation” but seeking to fix an amount reasonably
proportionate to the gravity of the injuries suffered. In my opinion the
general damages should be increased by $10,000.
In the first action, the appeal is dismissed
with costs, I would allow the cross-appeal with costs in this Court and in the
Appellate Division and direct that the judgment at trial be varied by
substituting for the sum of $12,000 general damages awarded to the respondent
Albert Missiaen the sum of $22,000. In the second action the appeal is
dismissed with costs.
Appeals dismissed with costs;
cross-appeal in first action allowed with costs.
Solicitors for the appellants: Clement,
Parlee, Irving, Mustard & Rodney, Edmonton.
Solicitors for the respondents, A.
Missiaen and M. Missiaen: Wood, Moir, Hyde & Ross, Edmonton.
Solicitors for the respondents, H. Bast and A. Bast:
Stack, Smith & Bracco, Edmonton.
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